When making a confiscation order in the Crown Court the judge will specify a ‘default sentence’ – a consecutive prison term which the defendant may be required to serve if he fails to satisfy the confiscation order. A default sentence could be described as an additional penalty for failing to pay the confiscation order on time.
The intention is that the threat of triggering the default sentence will encourage the defendant to pay up. Serving the default sentence is not an alternative to paying the confiscation figure – the amount originally ordered to be paid remains payable even after the default sentence has been served.
How long is the default sentence?
The MAXIMUM length of the default sentence which the Crown Court judge may specify when making the confiscation order is set out in s139 Powers of Criminal Courts (Sentencing) Act 2000. The maximum is related to the amount which the defendant is ordered to pay, which is sometimes referred to as the ‘recoverable amount’. This will be the lower of his ‘benefit’ and his ‘available amount’ as found by the Crown Court.
These maximum sentences are set out in bands in s139(4), depending upon the amount ordered to be paid:
| An amount not exceeding £200 | 7 days |
| An amount exceeding £200 but not exceeding £500 | 14 days |
| An amount exceeding £500 but not exceeding £1,000 | 28 days |
| An amount exceeding £1,000 but not exceeding £2,500 | 45 days |
| An amount exceeding £2,500 but not exceeding £5,000 | 3 months |
| An amount exceeding £5,000 but not exceeding £10,000 | 6 months |
| An amount exceeding £10,000 but not exceeding £20,000 | 12 months |
| An amount exceeding £20,000 but not exceeding £50,000 | 18 months |
| An amount exceeding £50,000 but not exceeding £100,000 | 2 years |
| An amount exceeding £100,000 but not exceeding £250,000 | 3 years |
| An amount exceeding £250,000 but not exceeding £1 million | 5 years |
| An amount exceeding £1 million | 10 years |
However a judge may specify any length of default sentence, even a very short one – provided he does not exceed the relevant maximum length from this table.
In practice judges have been encouraged by decisions of the Court of Appeal in cases such as Pigott v R [2009] EWCA Crim 2292 to use appropriate discretion in fixing default sentences and not to automatically apply the maximum sentences set out in s139. Typically the judge will fix a default sentence somewhere between the maximum for the appropriate band in the table and the maximum for the band below, bearing in mind that the purpose of the default term is to secure payment of the confiscation order. But judges are discouraged from applying a purely mathematical approach to fixing the default term.
An example
So, for example, if a confiscation order was being made in the sum of £500,000 one would expect the judge to set a default sentence no greater than the maximum permitted for that amount (which is 5 years) and no less than the maximum for the band below (which is 3 years).
But one would not expect the judge to feel bound to fix the default sentence at a term based on a mathematical calculation, which would be 3 years 8 months (i.e. 3 years plus one third of an extra 2 years because the amount of £500,000 is one third of the way between £250,000 and £1,000,000).
Co-operation
Although the judge should consider all the circumstances of the case in fixing the default sentence, he is likely to be particularly influenced by the co-operation, or lack of it, which the defendant has displayed in his conduct in relation to the confiscation proceedings.
Very large amounts
A particular difficulty arises where the confiscation order is for an amount in excess of £1 million because the table gives no guidance as to when it may become appropriate for a default sentence to be made in the maximum period of 10 years.
The Court of Appeal considered this point in the case of R v Castillo [2011] EWCA Crim 3173 in which a default term had been set at 10 years in relation to an order for £3 million against a defendant who was held to have deliberately hidden his ill-gotten gains outside the UK.
Notwithstanding the size of the order and the lack of co-operation from the defendant, the Court of Appeal reduced the default sentence in Mr Castillo’s case to nine years.
Early release
Prisoners who are further detained at the end of their sentence in default of a confiscation order are eligible to be considered for early release on temporary licence (see chapter 5.3 of Prison Service Order 6300).
But in addition a default term is reduced pro-rata to any payments received in part satisfaction of the confiscation order. This is a purely mathematical exercise. (The underlying statute law involves a complex path from s35(2) PoCA 2002 to ss139 & 140 Powers of Criminal Courts (Sentencing) Act 2000 to s79(2) Magistrates’ Courts Act 1980. There are worked examples of the calculation in Chapter 16 of PSO 6650 ‘Sentence Calculation’.) So, for example, suppose Timothy had been ordered to pay £600,000 with a four year prison term in default. Let’s say Timothy has paid £500,000 and there remains £100,000 outstanding. Timothy’s default sentence has now become 8 months – or, more accurately, 243 days (i.e. one-sixth of his original default sentence of 4 years because one-sixth of the original amount remains outstanding).
Contrast this with Gerald who has a confiscation order made against him for £100,000 with a default sentence set at 2 years and has made no payment off it. Gerald also has £100,000 outstanding but, unlike Timothy, his default sentence is 2 years. That apparent unfairness is a result of the non-linear basis of the table of default sentences in s139.
Appeals
In the past default sentences have proved to be a fertile ground for appeals – particularly where the Crown Court judge has been too quick to apply the maximum term specified in s139. In all likelihood we shall continue to see a steady stream of such cases making their way to the Court of Appeal.
David
(Note: This article applies to default sentences relating to confiscation orders under the provisions of Part 2 of the Proceeds of Crime Act 2002 in England and Wales. There are a number of additional issues which could be relevant to a defendant’s default sentence in particular cases which it is not possible to deal with in a relatively short article such as this. Appropriate professional advice should be sought in each individual case.)